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Archive for March, 2009

The Comment to Canon 2 of the Code of Conduct for United States Judges defines appearance of impropriety as follows: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, *would* conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” (Emphasis added).
Ironically, that is a lesser standard for disqualification than is required under the Federal Disqualification Statute, 28 U.S.C. § 455, and under the Due Process Clause of the Constitution. The following is adapted from Understanding Lawyers’ Ethics (3d ed. 2004).
Section 455 says: “Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality *might* reasonably be *questioned*.” In addition to the plain meaning of the statute, the legislative history shows that disqualification is required when there is “any reasonable factual basis for *doubting* the judge’s impartiality.”
Also, as a matter of constitutional due process, a judge is required to recuse himself if there is “a *possible* temptation to the average . . . judge . . . which *might* lead him not to hold the balance nice, clear, and true. . . .” or if the circumstances “*might* create an impression of *possible* bias.”
Nevertheless, there is a tendency for some judges and commentators — and particularly for advocates opposing disqualification — to slip away from the statutory language, turning “might” into “could” or “would.” The differences are important. The word “might” is used to express “tentative possibility;” “could” is used to express “possibility;” while “would” connotes what “will” happen or is “going to” happen. Accordingly, the word “would” requires significantly more than a tentative possibility of doubt regarding a judge’s impartiality, and use of the word “would” therefore produces a subtle but substantial change in the meaning of the statute.
For example, when Justice Stephen Breyer was nominated for the United States Supreme Court, I argued against his confirmation. The reason was that Breyer, when sitting in the First Circuit, had written an opinion that could well have had a devastating impact on Breyer’s own financial well-being. I maintained that Breyer had therefore acted unethically in failing to recuse himself. Then White House Counsel Lloyd Cutler contended that reasonable people differed about whether Breyer’s impartiality in the case was questionable, and that Breyer therefore was not required to recuse himself.
That argument would have had force if the statute required disqualification only when a reasonable person *would* question the judge’s impartiality. In that event, if reasonable people disagreed about whether the judge’s impartiality is questionable, one could not say that a reasonable person *would* question it — only that she might or might not — and recusal would not be required. Under the statute, however, if reasonable people do disagree, then clearly a reasonable person might question the judge’s impartiality, and recusal is required.

That is, under § 455(a) a federal judge, or justice, can properly stay in a case only if no reasonable person *might question* the judge’s impartiality.

The Judicial Conference of the United States has (gently) amended the Code of Conduct for United States Judges. The revisions, inspired in part by the 2007 Model Code of Judicial Conduct, can be found here and will take effect on July 1, 2009.

It has been reported in the press that the new federal code contains for the first time a definition of the appearance of impropriety. To be sure, the new code does contain a definition of the appearance of impropriety: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” Code of Conduct for United States Judges Canon 2 cmt. (2009). The “old” (but currently in effect) code, however, contains a similardefinition: “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Code of Conduct for United States Judges Canon 2 cmt. (2000). To me, the juxtaposition shows that the only significant change is the explicit inclusion of “temperament” in the test for the appearance of impropriety in the new code, but that trait certainly is not “new” to impropriety analysis. The new definition also omits the word “perception,” which arguably dilutes a true “appearance” standard.

The Supreme Court recently released the transcript of the oral argument in the West Virginia disqualification case (see Justice for Sale?), which was argued on March 3, 2009. Because, for example, Justice Kennedy seemed favorably inclined [see, e.g., Tr. at 33], I am cautiously optimistic for a five-to-four decision in favor of due process.To read the full transcript, click here. My favorite lines include:

§JUSTICE STEVENS: “We have never confronted a case as extreme as this before. This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’ (Laughter.)”

§COUNSEL FOR MASSEY COAL: “I understand the . . . concerns about having the [apparently biased] judge making the decision about whether recusal is required, but that is not the practice of this Court, and if it’s not the practice of this Court, I frankly doubt it’s unconstitutional.”

§JUSTICE BREYER: “The debt of gratitude . . . isn’t the theory that underlies [the due process challenge], though it may in part. . . . A normal human being also thinks, if I play my cards right, maybe [the substantial expenditure] will be repeated, and they’ll want to keep me in office. And we have the fact of how it looks, and we don’t have a situation where the something like this is inevitable, where you appoint judges.”

§JUSTICE SOUTER: “If one is going to go into that calculation, one is going to assume that in eight years, there’s going to be another three million dollars waiting to be spent.”

§JUSTICE BREYER: “Call [the proposed due process standard] a ‘probabilty’ [of bias]; call it an ‘appearance.’ Use the language that you want, but put them together, and they spell ‘mother.'”

§JUSTICE SCALIA: According to Justice Scalia’s rather trusting views of judicial elections, if someone were to contribute money to his hypothetical campaign, “that person contributed money to my election because he expected me to be a fair and impartial judge, and I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude.”

(The following is on judicial elections and due process, from Understanding Lawyers’ Ethics (3d ed. 2004).I’m concerned that those on the court who are hostile to recusal (e.g., Justices Scalia and Breyer) will use the extreme facts of the W.Va. case to sharply limit the statutory and constitutional recusal requirement.)
The most important potential significance of White is the strong suggestion in the opinions of Justices O’Connor and Ginsburg (writing for a total of five justices) that no judge subject to reelection can decide a controversial case without violating due process.As discussed earlier in this chapter [9: “The Impartial Judge”], due process is denied if there is a “possible temptation to the average . . . judge . . . which might lead him not to hold the balance nice, clear, and true. . . .”There is substantial reason to believe that elective judges are influenced in controversial cases by the threat of being voted out of office.Particularly in a case involving issues like the death penalty or abortion rights, therefore, there is a strong argument that a decision by such a judge violates the Due Process Clause of the Fourteenth Amendment.
Indeed, Justice O’Connor’s concerns ultimately go beyond the controversial case, to challenge the entire system of electing judges.She concurs separately to express her objections to “judicial elections generally.” Referring to the state’s claim of a compelling interest in “an actual and perceived … impartial judiciary,” she notes that “the very practice of electing judges undermines this interest.”Defining impartiality as being free of any stake in the outcome of a case, she explains that when judges are subject to regular elections, “they are likely to feel that they have at least some personal stake in the outcome of every publicized case.” That is, elected judges “cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.” Moreover, even when judges succeed in overcoming their concern with voters’ displeasure, “the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.”
O’Connor refers to a law review article that quotes former California Supreme Court Justice Otto Kaus’ statement that ignoring the political consequences of controversial cases is like “ignoring a crocodile in your bathtub.”She also relies on an article that cites statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty.
In addition, O’Connor discusses the pernicious effects of campaign fundraising in judicial elections, noting, for example, that the thirteen candidates in a partisan election for five seats on the Alabama Supreme Court in 2000 spent an average of $1,092,076 on their campaigns.Not surprisingly, lawyers and litigants who appear before the judges are among the major contributors to judges’ campaigns, and “relying on campaign donations may leave judges feeling indebted to certain parties or interest groups.”
When lawyers and litigants appear to be buying influence with campaign contributions, the appearance of partiality goes beyond the highly publicized case, tainting any case in which money may have passed.Thus, O’Connor’s ultimate due process challenge is to the entire system of judicial election of judges, in cases of both major and minor public interest.
Justice Ginsburg analyzes some of the Court’s most important cases requiring disqualification of state judges on due process grounds.Her analysis provides three conclusions.First, a litigant is deprived of due process where the judge who hears his case has a “direct, personal, substantial and pecuniary” interest in ruling against him.Second, the judge’s interest is sufficiently “direct” if the judge knows that “his success and tenure in office depend on certain outcomes.”Third, due process does not require a showing that the judge is biased in fact as a result of his self-interest.Rather, the cases have “always endeavored to prevent even the probability of unfairness.”
Ginsburg’s immediate focus in White is on the judge who has made or implied a commitment to voters to decide cases a certain way, and who fears voter retaliation if she fails to deliver.Her remarks, however, apply equally to any judge whose reelection may depend upon not offending voters in the next election.Such a judge may be thought to have a direct, personal, substantial, and pecuniary interest in ruling against certain litigants, Ginsburg notes, “for she may be voted off the bench and thereby lose her salary and emoluments” if her decision displeases the voters.Quoting The Federalist No. 79, she adds: “‘In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.’”
The Chair of the ABA Commission on the 21st Century Judiciary[, Edward W. Madiera,] agrees.“The commission found,” he has written, “that the greatest threats to the impartiality and independence of judges, whether real or perceived, are posed by the prospect of ouster from office based on the content of judicial decisions.”
Because states can no longer prevent judicial candidates from announcing views on legal and political issues, some states will very likely abandon judicial elections.To the extent that they do not, a litigant in a case involving a controversial issue will have a strong argument that due process requires disqualification of any judge who is subject to reelection.

The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.

Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).

But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.

So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.